PA Legislators Finally Develop Sympathy… For Illegal Gun Sales

The Republican Party controls both the Governorship and the General Assembly in Harrisburg, and they have made it one of their top priorities to prevent injured workers, consumers, and patients from receiving fair compensation for their preventable injuries. Back in September, I wrote about this attack on Pennsylvanians’ rights, discussing a legislative alert put out by the Pennsylvania Association for Justice which described some of the bills that Republican legislators had proposed as a means of further eroding Pennsylvania’s civil justice system.

Those bills included, for example, HB 304, which would impose a 15 year statute of repose in all product liability cases, which would mean that manufacturers of all types of products would be completely immune from any liability for products made before 1998. If you were driving down the road and a 1997 Ford suddenly caught fire and crashed into you, you would have no recourse against Ford.

Then there’s HB 808, which would force injured workers to continue treating with employer-designated healthcare providers for 180 days, instead of the current 90 days. The point of that law is to allow employers to send seriously injured workers to doctors the employers know will discount their complaints and dismiss their injuries, thereby making the worker and their lawyer more likely to settle their workers compensation claim. Even if the worker doesn’t settle, the employer-designed physicians can create an unfavorable, inaccurate medical record about the most important time in the care, the first six months after the accident, just in case the plaintiff decides to seek more compensation.

There’s also HB 1552, which would sharply limit where personal injury lawsuits could be filed (it would no longer matter where the defendant committed the negligence, where the defendant did business, or where the defendant kept their offices), part of an effort to pull personal injury lawsuits away from the fast-moving urban courts in Philadelphia and Pittsburgh and put them instead in the underfunded rural courts. Rural courts don’t have the same resources, so cases take longer to complete, thereby making it more likely the plaintiff — who, being injured, may have lost their ability to work and has incurred significant expenses relating to the injuries — will compromise the value of their case, all while allowing insurance company to make more money investing the insurance proceeds.

So imagine my surprise when I saw many of these same representatives who fight so hard to limit Pennsylvanians’ access to civil justice suddenly developing a passion for a certain type of civil lawsuit. Was their sudden display of sympathy for children brain damaged by malpractice in delivery? Workers paralyzed by employers who violated safety laws and regulations? Consumers who were injured or died as a result of taking dangerous prescription medicines? Victims of sexual abuse precluded from justice by the statute of limitations?

Under the bill, plaintiffs who challenge local gun-control ordinances could seek reimbursement for double their actual damages, attorney fees and costs, even if the municipality repealed the ordinance before a ruling is made in the case.

A court also might impose a $5,000 penalty and the plaintiff could seek triple damages, in addition to costs and attorney fees, if a judge found the municipality violated the state preemption law.

Boroughs, townships, and cities across the state, including at least nine in Southeastern Pennsylvania, began enacting local ordinances aimed at cracking down on illegal gun trafficking in 2008 after the General Assembly did not act on a statewide measure to crack down on so-called straw purchases of guns.

Here’s the bill itself. It’s rare for civil claims to include provisions allowing for the plaintiff to recover their attorneys’ fees and costs. You don’t get that for personal injuries. You don’t get that for malpractice. You don’t get that for sexual abuse. I think more civil claims should permit them, but is this the sort of claim that warrants it?

Consider the recent past of these sorts of lawsuits:

The ordinances in Pittsburgh and Philadelphia have stood up to legal challenge. Six cases heard by state courts, including one that went to the state Supreme Court, found that plaintiffs – including individuals and the NRA – did not have standing to sue.

Here’s the Commonwealth Court’s opinions in the Pittsburgh and Philadelphia cases. The plaintiffs lost their challenges to the lost and stolen gun ordinances because, well, they had never lost or stolen their guns. It’s the same “trees don’t have standing” rule we apply to environmentalists, who are routinely thrown out of court when they try to protect forests and wildlife, because, the courts say, the environmental groups themselves were not affected.

The Pennsylvania Legislature, of course, has an answer for that, granting standing to every fly-by-night operation that styles itself as a guns rights group:

The bill addresses that issue by granting such standing to any “aggrieved party” belonging to a gun rights group – or as the bill puts it, to any “membership organization . . . that is dedicated in whole or in part to protecting the legal, civil, or constitutional rights of its membership.”

Could you imagine the uproar if environmentalist groups were given standing to challenge every law that might violate some federal or state regulation? Or if patients could recover attorneys fees and costs in malpractice lawsuits?

As Pattye Benson describes, the bill isn’t really about Second Amendment rights, because those rights are already protected by ordinary civil rights claims under 42 U.S.C. 1983. It’s about the inexplicable desire of a small but wealthy and vocal lobbying group for gun manufacturers to resist eminently sensible laws requiring people report lost or stolen firearms. I’m sure they believe they’re just doing their patriotic duty by turning the epidemic of handgun violence in our country into a profit center; if the bill passes, they can sue the cities of Allentown, Clairton, Erie, Harrisburg, Homestead, Lancaster, Munhall, Oxford, Philadelphia, Pittsburgh, Pottsville, Reading, West Homestead, Wilkinsburg, each of which has one of these ordinances, negotiate a trivial change the ordinance, and walking away with a hefty settlement.

The real problem here is a failure of democracy. A handful of legislators have stood up in plain view of the public and admitted that, although they don’t believe most Pennsylvanians are entitled to civil justice when they are hurt, crippled or killed by greedy and reckless corporations (consider the Pennsylvania joint and several “reform”), they do think a handful of wealthy and well-connected lawyers and lobbyists should be able to make money on the side suing over laws that do nothing more than punish people for illegally selling firearms to criminals.

In a perfect world, such brazen favoritism to their corporate supporters would get them promptly voted out of office. Instead, it seems we’re lined up to debate a bill that will enrich a small special interest group by making our cities more dangerous and poorer even while the state slashes funding for education and food stamps.

About this Blog

For more than a decade, I have devoted my law practice to representing injured plaintiffs. I’m listed in Super Lawyers and Best Lawyers in America. This blog has frequently been listed by the ABA Journal as one of the top blogs in the country, and has been cited in dozens of law reviews.

Most of my cases involve either (1) a serious injury or wrongful death caused by someone else’s negligence or (2) nationwide litigation over defective medications and medical devices. I co-founded my own law firm, Kennerly Loutey LLC.